CJEU Confirms That EU Law on Family Reunification Should Be Accessible and Effective for Unaccompanied Children

by Karolina Babicka

[Karolína Babická is a Legal Adviser of the International Commission of Jurist’s Europe Programme.]

European Union (EU) law has in the last two decades shaped and to some extent also harmonized national legislation governing asylum and migration in EU member states. This month, the Court of Justice of the European Union (CJEU) has once again set out the very strict limits on the “margin of appreciation” when it comes to the right to family life and family reunification stemming from the EU Family Reunification Directive (Directive 2003/86). In the recent case C-550/16 A. and S. v Staatssecretaris van Veiligheid en Justitie it confirmed that the aim of the directive is to promote family reunification and highlighted the importance of the principles of equal treatment and legal certainty.

The CJEU had previously clarified that the Directive requires Member States, in specific cases, to authorize family reunification of certain members of the sponsor’s family, without being left any margin of appreciation (Case C‑540/03 Parliament v Council, para 60). The Court has clarified that the provisions of the Directive on Family Reunification require that States ensure that family reunification is the general rule (C-578/08, Chakroun case, para 43) and that the Directive is “interpreted strictly”. The interpretation of the provisions of the Directive should not deprive them of their effectiveness and the CJEU also highlighted that States must “examine applications in the interest of children and with a view to promoting family life” (O., S. & L., Joint Cases C-356/11 and C-357/11).

The Family Reunification Directive was adopted in 2003, when the three pillars of the EU were still in place and the co-decision procedure did not apply to the migration and asylum area. It was therefore adopted by the Council (EU Member States) only, without a decision-making power of the European Parliament. It has been criticized for granting a vast margin of appreciation to states and reveling in “may clauses,” but as the CJEU step-by-step clarifies, there are limitations to the States’ margin of appreciation.

A. and S.

On 12 April 2018, in the decision in the A. and S. case, the Court clearly stated that unaccompanied minors who attain the age of majority during the asylum procedure retains their right to family unification (C-550/16, A. and S.). States do not have a margin of appreciation to limit their right to family reunification of children with their parents, if they entered the State as children and got a confirmation of their status by the State once they were already adults.

In this case, a 17-year-old Eritrean girl, who had arrived unaccompanied in the Netherlands, lodged an application for asylum. She turned 18 about four months later, during the procedure, and in another four months the State Secretary for Security and Justice in the Netherlands, granted her a residence permit for persons granted asylum, valid for five years, with retroactive effect from the date on which her application for asylum was submitted. Two months later she asked for family reunification with her parents and three minor brothers, which was refused to her by the Dutch administration on the grounds that she was already an adult, who according to the Directive does not have the right to family reunification with parents.

The District Court of The Hague, where she appealed, decided to stop the proceedings and to refer a question to the Court of Justice for a preliminary ruling, asking whether a child entering and asking for international protection in an EU Member State attaining majority during the proceedings, shall be still seen as a child for the purpose of family reunification, once (s)he applies for it.

In its decision, the CJEU recalled the primary objectives and principles of the Directive, as it had already done previously in judgments Chakroun and O., S. & L. In particular, it reiterated that the primary objective of the Directive is to promote family reunification, to provide special protection to refugees and unaccompanied minors in particular and to observe the principles of equal treatment and legal certainty.

The Court recalls that for a uniform application of EU law and the principle of equality, a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union. That interpretation must take into account, inter alia, the context of the provision and the objective pursued by the legislation in question (Ouhrami, C‑225/16, para 38).

In a number of EU countries, the laws and administrative rules do not allow children who turn 18 during the asylum procedure to then apply for family reunification with their parents, as in that moment they are already adults. Such policies have been continuously criticized by civil society, and UN agencies, a suspicion of prolongation of asylum proceedings beyond the age of 18 of the applicant has been there, and this practice of State administrations has been seen as a measure to limit the right to family reunification of children.

The CJEU rightly points out that “the duration of an asylum procedure may be significant and that, in particular (…) the time limits laid down in that regard by EU law are often exceeded, to make the right to family reunification depend upon the moment when that procedure is closed would be likely to deny a substantial proportion of refugees who have submitted their application for international protection as an unaccompanied minor from the benefit of that right and the protection that Article 10(3)(a) of Directive 2003/86 is intended to confer on them.“ (para 57)

The Court recalls the principle of legal certainty as it would be “entirely unforeseeable for an unaccompanied minor who submitted an application for international protection to know whether he or she will be entitled to the right to family reunification with his or her parents“ (para 59) if the decisive moment would be the date when she or he submit their application for family reunification (which can only be the case after the refugee determination procedure has been completed).

The CJEU adds that this right would not be there indefinitely, but in principle the application for family reunification should be submitted within a period of three months of the date on which the ‘minor’ concerned was declared to have refugee status.“ (para 61)

Paragraph 55 of the current case A. and S. makes it clear that if the right to family reunification would depend on the person’s age upon the moment at which the State recognizes the refugee status of the person, it would leave the outcome dependent on how quickly or slowly the application for international protection is processed. That “would call into question the effectiveness of that provision and would go against not only the aim of that directive, which is to promote family reunification and to grant in that regard a specific protection to refugees, in particular unaccompanied minors, but also the principles of equal treatment and legal certainty.“

Conclusions and impact in other jurisdictions

This decision is in line with the obligation to take the best interests of the child as a primary consideration in all acts involving the child. States have positive obligations to ensure children’s effective enjoyment of their right to respect for family life. Under both EU and international law, the child’s best interests must be the primary consideration by all judicial and administrative authorities in any decision related to the child’s right to respect for his/her family life. The UN Committee on the Rights of the Child and the UN Committee on the Rights of Migrant Workiers in their Joint General Comment on children in the context of international migration (No. 4 and 23, para 32) stress that countries should facilitate family reunification procedures in order to complete them in an expeditious manner, in line with the best interests of the child. In line with the EU Charter, the best interests of the child have to be taken into account and respected (Article 24) as well as the right to private and family life (Article 7) and prohibition of discrimination (Article 21.1).
The European Commission (whose opinion in this case was different from the Court´s decision, asserting that the decisive moment is the time when the person applies for reunification (A. and S., para 30)) issued in 2014 Interpretative Guidelines for the Family reunification directive. There it specified that criteria for the conditions for family reunification adopted may not be discriminatory and that criteria used by Member States must be transparent and clearly specified in national legislation. The current judgment should carry significant implications for national legislators in this sense.
There are a number of further obstacles that Member States put forward in order to limit family reunification of migrants. These include a requirement that spouses must be more than 18 to reunite, various financial and material conditions that sponsors have to fulfill, and pre- and post- integration measures. As the International Commission of Jurists has found through its work to advance access to justice for migrant children in the EU through the Fostering Access to Immigrant children’s Rights (FAIR) project, limitations on family reunification have a particularly adverse impact on migrant children.
For instance in Germany, the access to family reunification for beneficiaries of subsidiary protection has been seriously hampered by a temporary measure disallowing family reunification to all such beneficiaries. A two-year suspension on family reunifications was introduced in 2016 for persons entitled to subsidiary protection. Refugees who were officially granted this protection after March 17, 2016, now have to wait until July 31, 2018, before they can even apply for family reunification.
Consequently, even children with subsidiary protection status currently have no option to demand lawful immigration of their parents for the purpose of family reunification. The recast Qualification Directive (covering both refugee and subsidiary protection status) provides that Member States shall ensure that family unity can be maintained. The Family Reunification Directive governs the family reunification practice and procedure for refugees and the CJEU has found in the Chakroun case that it established a right to family reunification. In Alo and Osso (Joined Cases C-443/14 and C-444/14) the CJEU declared that the Geneva Refugee Convention is also to be used as interpretative guidance in cases involving subsidiary protection beneficiaries. The CJEU found that the applicable provision in the Qualification Directive (freedom of movement, Article 33) does not specifically allow for differences in treatment between refugees and subsidiary protection beneficiaries, and as such should be treated in a similar manner (unless it could prove that they are not in a comparable situation). By analogy, the relevant provision in the recast Qualification Directive relating to family unity, Article 23, does not provide for a difference of treatment, and as such should be treated in a similar manner.
Germany also seems to claim that the case A. and S. against the Netherlands is not applicable in all EU member states, as the Dutch authorities grant refugee status retroactively. This only calls for a reiteration that the recognition of refugee status by a State party to the Geneva Refugee Convention (to which all EU Member States are parties) is always of a declaratory character.

It would be interesting to see a CJEU preliminary ruling in this case.

May 14, 2018ANZAC Day and Post Conflict Reconciliation[Chris Jenks is an associate professor of law and directs the criminal justice clinic at the SMU Dedman School of Law in the US.]
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